Ridiculous. Baseless. Dilatory. Wasteful. Disingenuous.
Those were just a few of the choice words U.S. District Chief Judge Royce Lamberth recently had for District of Columbia government lawyers. They had violated a discovery order, he said in an Oct. 4 opinion, and in trying to defend their actions, they were asking him to enter an “Orwellian world” where “all arguments are devoid of context.”
To the city’s lawyers, Lamberth had gone too far. They asked him to strike the “vituperative rhetoric”— but the judge scoffed. “The Federal Rules provide for no motions for reconsideration for hurt feelings, no motions to strike things that could make you look bad,” he wrote on Nov. 19.
In 25 years on the bench, it wasn’t the first time Lamberth faced pushback from lawyers over his language. In 2006, the U.S. Court of Appeals for the D.C. Circuit removed Lamberth from a case in part because of strong words that prompted objections from the U.S. Department of Justice. Lamberth doesn’t “sugarcoat things,” said Cadwalader, Wickersham & Taft partner Kenneth Wainstein.
“As a government attorney and as a judge he’s always called it as he sees it,” said Wainstein, noting Lamberth can be especially demanding of government lawyers. “I think that springs from his strong belief in right and wrong and making sure that everybody gets a fair shake.”
Lamberth, a D.C. federal judge since 1987 and chief judge since 2008, declined to discuss his approach to writing opinions or his style. But he did say he thought the court should expect lawyers to perform at a high level “and not just wink or overlook or ignore conduct that falls short.”
Federal judges are often required to be critical and disciplinary action over language is rare, said Cynthia Gray, director of the American Judicature Society Center for Judicial Ethics, in an email. Judges are required to be patient and dignified, she said, but “second-guessing a judge’s decision on how strongly he or she needs to express himself or herself to get the job done is inconsistent with the discretion granted judges.”
Known for his outspokenness on the bench and in person, Lamberth ran the civil division of the local U.S. attorney’s office before being nominated. “He was a fantastic manager and a very fine writer,” said former U.S. attorney Joseph diGenova, now with diGenova & Toensing. “The material that used to come from the civil division to us in the front office was always superb, from top to bottom.”
After his appointment in 1987, news archives showed Lamberth was drawing attention for his writing by the early 1990s. In a 1992 article in Legal Times, a lawyer described one of his rulings as “sort of harsh in its language.”
But it was his handling of litigation over the U.S. Department of the Interior’s mismanagement of government trust funds for Native Americans that got him in trouble. In a July 2005 opinion he called the Interior Department, among other things, “a dinosaur—the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago.” The Justice Department successfully appealed to have Lamberth removed, pointing to the July ruling and a string of reversals.
University of Georgia School of Law Professor Peter Rutledge, who wrote in 2006 that the decision posed a threat to judicial independence, said that although he hasn’t seen a flurry of similar removal petitions, it represented a “tarnishing” of the judiciary’s power to hold another branch of government accountable. “If you disagree with the judge, get him or her reversed on the merits,” he said.
In less fraught instances, Lamberth has made headlines for injecting personality into his opinions; a January opinion compared Medicare laws to a text “written by James Joyce and edited by E.E. Cummings.” At the time, Lamberth credited a clerk with the idea for the line.
Crossing the line
The D.C. attorney general’s office has borne some of the strongest of Lamberth’s colorful verbiage in recent years. In May 2011, he chastised city lawyers for committing a discovery violation “so extreme as to be literally unheard of.”
Attorney General Irvin Nathan said in a statement that his office “has great regard for Chief Judge Lamberth, whom we accurately called a ‘respected jurist’ in our recent motion for reconsideration,” referring to the city’s objection to Lamberth’s October opinion.
Covington & Burling senior counsel Peter Nickles, Nathan’s predecessor as D.C. attorney general, said that although Lamberth is “tough,” he couldn’t think of an opinion that crossed a line. Nickles, who often clashed with city officials, said he could understand when Lamberth’s opinions reflected an impatience with attorneys before him.
“Lawyers know when they are crossing the line, or close to crossing the line; this is not a mystery. Lawyers know when they have an argument that’s a bunch of baloney,” Nickles said. “Lamberth will call you out in a second.”
Lamberth said he feels an obligation to correct government lawyers not meeting high ethical and professional standards. “As a former career government lawyer myself, I think the court expects government lawyers to perform at the highest standard of the profession,” he said. “I think society expects that of the government’s lawyers and I certainly expect it.”
When Lamberth turns 70 next July, he plans to take senior status; federal law requires that he step aside as chief judge. Stanley Sporkin, a former D.C. federal judge, said being on the bench can be liberating, especially if a judge isn’t actively angling for appointment to a higher court. “That’s the great thing I found about being a district court judge; I owed nobody anything. I think he probably has that same feeling,” he said. “He doesn’t need to satisfy anybody.”